Department of Education, Northern Cape v Education Labour Relations Bargaining Council and Others (PR229/18) [2023] ZALCPE 18 (15 August 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH

Not Reportable

Case Number: PR229/18

In the matter between:

DEPARTMENT OF EDUCATION

NORTHERN CAPE

Applicant

and

EDUCATION LABOUR RELATIONS

BARGAINING COUNCIL (“ELRBC”)

First Respondent

DAVID PIETERSON N.O.

Second Respondent

T S MATHOLENGWE

Third Respondent

Heard: 20 July 2023

Delivered: This judgment was handed down electronically by circulation to the applicant’s and the respondent’s legal representatives by email, publication on the Labour Court website and release to SAFLII. The date for handing down is deemed to be on 15 August 2023.

JUDGMENT

MSIZI, AJ

[1] Sometime in 2017, the Northern Cape Department of Education, the applicant herein, issued an advertisement for the vacant post of the principal of the Voorspoed Primary School. This culminated in the School Governing Body (the “SGB”) of the school interviewing the candidates that were short-listed for this post. Eventually, on 16 August 2017, the SGB compiled its report on the outcome of interview and made its recommendations. It recommended two names in order of preference: TS Matholengwe as number 1 with 92 points and JM Dipogo as number 2 with 90 points.

[2] The SGB accompanied the recommendation with its motivation. It forwarded its recommendations and motivation to the Head of Department of Education (“the HOD). On 30 October 2017, the HOD wrote to the SGB regarding its recommendation. In paragraph 2 of the letter, he wrote:

“After a thorough consideration of your recommendation and having satisfied myself that such recommendation complies with the requirements set out in sections 6(3)(b) and 7(1) of the Employment of Educators Act and acting in terms of section 6(30(f) of the Act, I hereby approve your recommendation for appointment. Kindly find attached hereto such appointment letter.”

[3] However, the letter of appointment was not attached to the letter from the HOD. So, the SGB assumed from reading the letter that the HOD had appointed the first preferred candidate it recommended, Mr Matholengwe, the third respondent (“respondent”)

in these proceedings. After learning later that it was in fact the second preferred candidate that was appointed, the SGB wrote to the HOD questioning his decision in light of its recommendation and his letter of 30 October. Pursuant to this, the parties met at least three times to get to the bottom of this. This bore no fruit at least for the SGB and the respondent. The HOD wrote another letter to the SGB on 21 November 2017. In the letter, the HOD stated that:

“Kindly be informed that my office acted in terms of section 6(3)(f) of the Employment of Educators Act 76 of 1998 which allows it to appoint any suitable candidate from your recommended and preferred candidate list. We must also for the record state that, in terms of your own assertion, your office declined to provide three names as required citing the fact that they did not comply with section 7(1() of the Act in that their ability would not have led to improvement in learner outcomes.

My office greatly appreciates your honesty and has accepted that irrespective of the preferred list and given minor differences in ability the appointed candidate would allow us to realise the constitutional obligation of providing quality education through the resources provided to schools.

Your office is therefore advised to deliver his appointment letter soonest in order for us not to disrupt the beginning of the new academic year.”

[4] Even though further engagements took place between the SGB and HOD after the receipt of this latest letter, the parties could not find each other. On 13 February 2018, the respondent referred a dispute to the Council for Conciliation Mediation and Arbitration of South Africa (“the CCMA”) complaining of unfair labour practice. Attempts at conciliation having failed, the resolution of the dispute proceeded to arbitration.

[5] On 10 October 2018, the CCMA concluded that the HOD committed an unfair labour practice relating to the promotion of the respondent. It ordered the MEC to appoint the respondent to the position of principal of Voorspoed Primary School with retrospective effect from 3 November 2017.

[6] The applicant now wants this award to be rescinded and set aside on the basis that it is an unreasonable decision. It is this application for review of the award of the CCMA that is before this court for determination.

THE MAIN GROUNDS OF REVIEW

[7] The applicant has advanced four main grounds for challenging the decision of the CCMA, namely, that the commissioner (i) acted ultra vires his powers; (ii) considered irrelevant evidence; (iii) failed to consider relevant evidence and legal principles; and (iv) failed to properly analyse the facts before him and to apply the relevant legal principles.

[8] Mr Mthombeni for the applicant acknowledged that there was an overlap between the third and fourth ground.

[9] I now proceed to deal with the first ground relied upon by the applicant. In support of the first ground, that the commissioner acted ultra vires, the applicant raised the following:

(i) the commissioner went beyond the scope of the dispute as described by the respondent in the referral of dispute form. The description of dispute in the referral form constitutes pleadings which confines the commissioner to the issue described therein; and

(ii) the decision of the HOD was an administrative decision as defined in section 1 of the Promotion of Administrative Justice Act No. 3 of 2000 (‘PAJA”), such decision was reviewable under various subsections of section 6(2) of PAJA by a court of law

and not by the commissioner.

[10] It is not correct that the commissioner should have limited himself to what is described in the referral of dispute form. It is incumbent upon a commissioner to establish the issues before him or her by looking beyond the labels the parties subscribe as the issue at hand. See CUSA v TAO Ying Metal Industries 2009 (4) SA 204, at paragraphs 65-66.

[11] This is what the commissioner did in this case. His description of issues for determination cannot be faulted. Therefore, this ground must accordingly fail.

[12] The attack of the award on the basis that the commissioner adjudicated upon an administrative decision can equally not be sustained. See Gcaba v Minister of Safety and Security and Others[1]. Therefore, the decisions of the Supreme Court of Appeal, decided in Head of the Western Cape, Education Department and Others v Governing Body of the Point High School and Others[2]; and Kimberley Junior School and Another v Head of the Northern Cape Education Department and Others[3], relied on by the applicant’s counsel, do not assist.

[13] What is left to decide is the essence of this review application.

[14] This begins with the test that was postulated by the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines Ltd[4], namely, “…is the decision reached by the commissioner one that a reasonable decision-maker could not reach?...”

[15] This test is stringent, aimed at making sure that awards are not lightly interfered with. See Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and Others[5] and Herholdt v Nedbank Ltd[6].

[16] To succeed in the review, the applicant, on whom the onus rests[7], should satisfy this court that the commissioner’s decision fell outside the bounds of reasonableness.[8] This requires the applicant to show that the award is not capable of reasonable justification on all the material that was before the commissioner, including the reasons not considered by the commissioner.[9]

[17] I now proceed to consider the next grounds on which the award is assailed, which are that the commissioner considered irrelevant issues; ignored relevant facts and legal principles and failed to properly analyse the facts and apply the legal principles.

[18] In support of its contention that the commissioner considered irrelevant evidence and facts, Mr Mthombeni referred to paragraph 6 of the award, where the commissioner listed three issues he had to consider. These were recorded as: “(i) whether the approval letter of the SGB’s decision is what it purports to be; (ii) whether the HOD deviated from the provisions of the EEA? and (iii) whether the HOD provided reasons to the respondent, if so, whether such reasons were reasonable?”

[19] Mr Mthombeni argued that the commissioner should have adopted the approach outlined by this court in Ndlovu v CCMA and Others[10] and National Commissioner of the SAPS v Safety & Security Sectoral Bargaining Council & Others.[11] He argued that there must be a causal connection between the unfairness complained of and the prejudice that has been suffered. He further posited that the Commissioner failed to follow these two cases and in so doing did not recognize that it is the respondent that bears the onus to prove that the conduct complained of constitutes an unfair labour practice in terms of section 186(2) of the Labour Relations Act[12] (the LRA).

[20] Mr Mthombeni further pointed out that the commissioner had regard to the fact that the HOD never disputed that the SGB had complied with section 6(3)(b)[13] of the Employment of Educators Act[14] (EEA)[15].

[21] To anchor this criticism, Mr Mthombeni argued that the commissioner overlooked the fact that the HOD has a discretion in terms of section 6(3)(f). The subsection provides. “despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list.”

[22] The HOD never testified at the enquiry and as such the commissioner never had the benefit of being addressed on how the HOD exercised his discretion. It id thus not open to Mr Mothembi to advance this ground.

[23] In dealing with the issue before him, the commissioner relied on the testimony of the only witness who testified on behalf of the applicant, Mr Buthelezi, the applicant’s director of human resources. In his testimony, Mr Buthelezi had conceded that the HOD may only deviate from the recommendations of the SGB if there is no compliance with the provisions of section 6(3) of the EEA. Therefore, there is nothing unreasonable with the commissioner’s conclusion that the HOD had not justified reasons to deviate from SGB’s recommendation.

[24] The respondent solicited the reasons for the decision of the HOD but his attempts failed. Furthermore, both the SGB and the respondent gave testimony in the commission. The SGB explained how it came to its recommendations and the respondent explained how he felt that he was unfairly overlooked by the department through the HOD. After the respondent adduced evidence and challenged the manner in which the HOD dealt with the recommendations of the SGB, the burden shifted to the applicant. In the absence of the HOD or a witness that could explain why the recommendation of the SGB was not accepted, the respondent’s evidence was not refuted. The evidence of the Head of Human Resources did not pass muster.

[25] In the award, the commissioner stated the manner in which he conducted the enquiry before him. He also explained how he came to the conclusion that the applicant committed an unfair labour practice. He wrote:

‘56 It was common cause that the applicant was recommended as the first candidate. The evidence revealed that the recommendation of the SGB was approved by the HOD. I have founded [sic] that a clear possibility exists that the appointment letter which the Circuit Manager gave to the SGB a few days after the main letter was delivered, might not be the same letter which the Circuit Manager withheld in the first instance.

57 I have also found that the HOD did not follow the prescripts of the EEA in deviating from its already approved recommendations and that its reasons for the deviation are insubstantial. This brings [sic] to the conclusion that the HOD as the main respondent in this matter committed an act of unfair labour practice relating to promotion.’

[26] The applicant has failed to demonstrate how having regard to these aforegoing considerations was unreasonable and even more, did not show how these considerations have caused an unreasonable result.

[27] In these circumstances, it can only be concluded that the applicant has failed to discharge the onus on it to show that the decision of the commissioner is assailable. Therefore, I issue the following order:

Order

(i) The application for the review of the award issued by the CCMA on 10 October 2018 in Case No. PSES794-17/18NC is dismissed.

_____________________

N Msizi

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Adv. Mthombeni

Instructed by: Messrs Mjila Attorneys

c/o messrs Yolisa Ndzuta

For the Third Respondent: Adv Mashiyi

Instructed by: Messrs.

Le Grange Liebenberg du Plessis Inc

c/o Brown Braude and Vlok Inc

[1] [2009] ZACC 26; 2010 (1) SA 238 (CC).

[2] [2008] ZASCA 48; 2008 (5) SA 18 (SCA).

[3] [2009] ZASCA 58; 2010 (1) SA 217 (SCA).

[4] [2007] ZACC 22; 2008 (2) SA 24 (CC) at para 110.

[5] [2007] ZALAC 12; [ 2008] 3 BLLR 197 (LAC) at para 100.

[6] [2013] ZASCA 97; 2013 (4) SA 224 (SCA) at para 13.

[7] Solid Doors (Pty) Ltd v Hanekom N.O and Others [2014] ZALAC 19; [2012] JOL 2951 (LC) at para 12.

[8] Sidumo at para 109.

[9] Fidelity at para 103.

[10] [2000] ZALC 153; [2000] JOL 6428 (LC).

[11] (2005) JOL 14291 (LC).

[12] Act 66 of 1995, as amended.

[13] Section 6(3) states the only grounds on which an HOD may decline the recommendation emanating from an SGB.

[14] Act 76 of 1998.

[15] Section 6(3)(b) sets out five grounds upon which the HOD may decline a recommendation made by the SGB.